FIRST SECTION

DECISION

Application no . 5864/12 Đuro KRESOVIĆ and others against Croatia

The European Court of Human Rights (First Section), sitting on 12 September 2017 as a Committee composed of:

Kristina Pardalos , President, Ksenija Turković , Pauliine Koskelo , judges, and Renata Degener, Deputy Section Registrar ,

Having regard to the above application lodged on 13 December 2011,

Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicants,

Having deliberated, decides as follows:

THE FACTS

1. A list of the applicants is set out in the appendix. They are all represented by L. Šušak , a lawyer practising in Zagreb.

2. The Croatian Government (“the Government”) were represented by their Agent, Ms Å . Sta ž nik .

A. The circumstances of the case

3. The facts of the case, as submitted by the parties, may be summarised as follows.

4. On 3 February 1996 an Amendment to the Obligations Act ( Zakon o izmjeni Zakona o obveznim odnosima , Official Gazette no. 7/1996 of 26 January 1996 – “the 1996 Amendment”) entered into force. It repealed section 180, which regulated the State ’ s liability for violent and terrorist acts and stayed all proceedings instituted on the basis of that provision, pending the enactment of new legislation.

5. On 8 March 1996 the applicants brought a civil action against the State in the Biograd na moru Municipal Court ( Općinski sud u Biogradu na moru ), seeking compensation for damage to their house, which was destroyed during the war in Croatia. They relied on section 180 of the Obligations Act.

6. The proceedings were stayed on 4 December 2000, pursuant to the 1996 Amendment.

7. On 31 July 2003 the Act on Liability for Damage Resulting from Terrorist Acts and Public Demonstrations ( Zakon o odgovornosti za štetu nastalu uslijed terorističkih akata i javnih demonstracija , Official Gazette of the Republic of Croatia no. 117/2003) of 23 July 2003 – “the Liability Act”) was enacted, providing that the State was liable in tort for damage caused by death, bodily injury or impairment of health resulting from terrorist acts. Damage to property was to be compensated through reconstruction assistance, which could be obtained from the competent administrative authorities under the Reconstruction Act. The Act also provided that all proceedings stayed on the basis of the 1996 Amendment would be resumed in accordance with the new provisions.

8. Accordingly, on 16 December 2003 the Municipal Court resumed the proceedings instituted by the applicants, under the 2003 Liability Act.

9. On 11 August 2006 the Biograd na moru Municipal Court dismissed the applicants ’ claim and ordered them to reimburse the State for the costs of the proceedings, an amount totaling 84,000 Croatian kunas (HRK).

10. The first-instance judgment was upheld by the Zadar County Court ( Županijski sud u Zadru ) on 1 March 2007 and the Supreme Court ( Vrhovni sud Republike Hrvatske ) on 4 December 2007.

11. A subsequent constitutional complaint by the applicants was dismissed by the Constitutional Court ( Ustavni sud Republike Hrvatske ) on 13 October 2011.

12. The applicants reimbursed the State HRK 60,000 for the costs of the proceedings.

13. The applicants in turn asked the Ministry of Justice to reimburse them the HRK 60,000 which they had paid for the costs of the proceedings. They relied on section IV of a Government Decision on writing off claims for the costs of civil proceedings awarded to the Republic of Croatia in certain proceedings, issued on 28 May 2009. The Ministry of Justice had been entrusted under that section with the duty of collecting information on costs that had already been paid to the Republic of Croatia in civil proceedings in judgments delivered after 31 July 2003. That duty related to proceedings instituted on the basis of section 180 of the Obligations Act, before the Act had been repealed, and which had resumed on the basis of section 10 of the Liability Act. The plaintiffs ’ action had been dismissed in application of section 8 of the Act and the plaintiffs had thus been obliged to reimburse the State for the costs of the civil proceedings and to make proposals to the Government regarding the method of reimbursement.

14. On 19 April 2011 the Ministry of Justice replied that it was not authorised to exercise control over court judgments and decisions.

B. Relevant domestic law

1. The Obligations Act

15. The relevant part of the Civil Obligations Act ( Zakon o obveznim odnosima , Official Gazette, nos. 53/1991, 73/1991, 3/1994, 7/1996 and 112/99) provided as follows:

Section 180(1)

“Liability for loss caused by death or bodily injury or by damage to or the destruction of another ’ s property, when it results from acts of violence or terrorist acts or from public demonstrations or manifestations, lies with the ... authority whose officers were under a duty, according to the laws in force, to prevent such loss.”

2. The 1996 Amendment to the Obligations Act

16. The relevant part of the Act Amending the Civil Obligations Act reads as follows:

Section 1

“Section 180 of the Civil Obligations Act (the Official Gazette nos. 53/91, 73/91 and 3/94) shall be repealed.”

Section 2

“Proceedings for damages instituted under section 180 of the Civil Obligations Act shall be stayed.

The proceedings referred to in sub-section 1 of this section shall be resumed after the enactment of special legislation governing liability for damage resulting from terrorist acts.”

3. The 2003 Liability Act

(a) Relevant provisions

17. The Act on Liability for Damage Resulting from Terrorist Acts and Public Demonstrations provides, inter alia , that the State is to compensate only damage resulting from bodily injuries, impairment of health or death. All compensation for damage to property is to be sought under the Reconstruction Act. Section 10 provides that all proceedings stayed pursuant to the 1996 Amendment are to be resumed.

(b) The Government of Croatia ’ s decision of 28 May 2009

D E C I S I O N

on the writing off of claims for the costs of civil proceedings awarded to the Republic of Croatia in certain proceedings

I.

“Unpaid claims for the costs of civil proceedings awarded to the Republic of Croatia in final judgments delivered after 31 July 2003 in proceedings instituted on the basis of [former] section 180 of the Obligations Act, and resumed on the basis of section 10 of [the 2003 Liability Act], in which the plaintiffs ’ action was dismissed in application of section 8 of that Act and the plaintiffs were obliged to reimburse the costs of civil proceedings to the Republic of Croatia, are hereby written off.

...

III.

The competent state attorney ’ s offices are hereby authorised not to institute enforcement proceedings to collect claims referred to in point I. and II. of this Decision and to withdraw applications for enforcement in enforcement proceedings already instituted.

IV.

The Ministry of Justice is hereby entrusted with the duty of collecting information on costs [already paid] of civil proceedings awarded to the Republic of Croatia in the judgments referred to in point I. and II. of this Decision, and making proposals to the Government of Croatia regarding the method of their reimbursement.

V.

This Decision shall enter into force on the day of its adoption.”

(c) The College of State Attorneys General Instruction of 7 July 2009

i) as regards pending enforcement proceedings, to immediately withdraw the application for enforcement,

ii) as regards civil proceedings that had ended, not to request plaintiffs to pay the costs awarded in those proceedings nor institute enforcement proceedings with a view to collecting those costs that had been written off by the Government ’ s decision of 28 May 2009, and

iii) in pending civil proceedings, to inform the plaintiffs or their representatives of the Government ’ s decision of 28 May 2009 and of the intention of the state attorney ’ s offices to seek an award of the costs of those proceedings unless the plaintiffs withdrew their actions.

4 . The Reconstruction Act

20. The relevant part of the Reconstruction Act ( Zakon o obnovi , Official Gazette nos. 24/96, 54/96, 87/96 and 57/00) provides, inter alia , that the State must under certain conditions grant reconstruction assistance to the owners of property (flats and family houses only) which was damaged during the war. The request is to be submitted to the competent ministry.

COMPLAINT

21. The applicants complained under Article 1 of Protocol No. 1 to the Convention that the domestic courts had unjustifiably ordered them to reimburse the State for the costs of the civil proceedings at issue .

THE LAW

22. The applicants complained that their right to the peaceful enjoyment of their possessions had been violated. They relied on Article 1 of Protocol No. 1, which reads as follows:

“Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.

The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.”

23. The Government argued that the 28 May 2009 Government Decision on writing off claims for the costs of civil proceedings awarded to the Republic of Croatia in certain proceedings had no bearing on the applicants ’ case since it concerned only those proceedings which had been instituted before section 180 of the Civil Obligations Act had been repealed.

24. The applicants reiterated their complaint.

25. The Court accepts the Government ’ s contention that the Government Decision referred to in their submissions only concerned proceedings instituted before the repealing of section 180 of the Civil Obligations Act. However, the applicants did not bring their civil action against the State until March 1996, when section 180 had already been repealed.

26. Furthermore, the Court notes that the new Liability Act established that the State was liable only for damage resulting from bodily injury, impairment of health or death in certain circumstances pertaining to the death, whereas the applicants sought compensation for their house, which had been mined and blown up, a type of damage which was not covered at all by the Liability Act. In those circumstances, the applicants must have been aware when the Liability Act was adopted in 2003 that their action against the State had no prospect of success. However, they did not withdraw their claim and continued to argue it before the national courts. That caused unnecessary litigation, which entailed costs for the State ’ s representation, which the applicants ultimately had to pay after losing the case.

27. In those circumstances, the Court finds that the applicants ’ complaint does not disclose any appearance of a violation of the rights and freedoms set out in the Convention or its Protocols. Accordingly, this complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.

For these reasons, the Court, unanimously,

Declares the application inadmissible.

Done in English and notified in writing on 5 October 2017 .

             Renata Degener Kristina Pardalos              Deputy Registrar President

Appendix